Opinion
CV154006902S
04-13-2018
David HAYWOOD v. WARDEN, State Prison
UNPUBLISHED OPINION
OPINION
Sferrazza, J.
The petitioner, David Haywood, seeks habeas corpus relief from a total, effective sentence of seventy-seven years imprisonment, imposed after a jury trial, for the crimes of felony murder and attempted robbery first degree. The jury returned guilty verdicts for felony murder, conspiracy to commit robbery first degree, and robbery first degree. The Appellate Court affirmed the felony murder conviction on direct appeal; reversed the conviction for conspiracy and robbery first degree; and modified the judgment of conviction by entering a conviction for attempted robbery first degree in lieu of a completed robbery, State v. Haywood, 109 Conn.App. 460 (2008); cert. denied, 289 Conn. 928 (2008).
The petitioner filed a previous habeas petition that was denied, Haywood v. Warden, Superior Court, Tolland Judicial District, d.n. CV 10-4003327 (February 5, 2013), Cobb, J. The Appellate Court also affirmed that denial Haywood v. Commissioner, 153 Conn.App. 651 (2014); cert. denied, 315 Conn. 908 (2014).
The petitioner now alleges that previous habeas counsel, Attorney Mark Diamond, provided ineffective assistance with respect to his efforts to establish the ineffective assistance of, original appellate counsel, Attorney Glenn Falk, in his handling of the direct appeal. This court heard the trial of this matter on August 7, 2017, and makes the following findings of fact and rulings of law.
The Appellate Court concisely recounted the evidence adduced at the petitioner’s criminal trial that reasonably supported the jury’s verdicts, with the modification noted above:
" On October 30, 2002, William Brown and his girlfriend, Ukiah Cunningham, resided in a single-family house in Bethel. Brown’s friend, Kevin Moriarty, was staying with the couple at the time. Brown occasionally sold small amounts of marijuana to his friends. The defendant was acquainted with Brown and had purchased marijuana from him in the past. At the time, the defendant lived in Waterbury with his brother, Bobby Beale, and was romantically involved with Cunningham’s friend, Brandi Nelson.
On that day, Cunningham arrived home from work at about 5:30 p.m. Brown and Moriarty were in the house playing a video game. Shortly after Brown received a telephone call from the defendant asking for directions to his house, the defendant arrived with a tall, skinny, black male who had long dreadlocks or braids. This man was subsequently identified as Gregory Greene.
Fifteen or twenty minutes later, while Brown was in the dining room talking with Greene and the defendant, another man, later identified as Beale, entered through an unlocked rear door in the kitchen. Beale, who was carrying a gun, wore a bandana over the lower portion of his face, and he pushed Cunningham aside and told her to be quiet. Beale went into the dining room and announced a robbery. In response, Brown asked: " This is a joke, right?" The defendant responded: " No, this is not a joke." Because the dining room and kitchen are separated by a half wall, Cunningham could hear and see what was happening in the dining room. She testified that the defendant did not appear shocked or surprised by Beale’s actions, nor did he protest his actions.
Moriarty, who was still in the living room playing a video game, could not see in the dining room but heard " forceful talking" and words like " give me this, give me the money, give me the drugs, don’t mess around." At first, Moriarty was unsure whether a friend of Brown’s was playing a practical joke, but as a precaution, he grabbed a broom as he approached the dining room. As Moriarty turned a corner, Beale put a gun to Moriarty’s chin and said: " Don’t even think about it." Moriarty indicated that the defendant also had a gun and that both he and Beale were demanding money and drugs, to which Brown responded: " [H]ow could you play me like this?"
As the argument escalated, Brown began to struggle with the defendant, and Moriarty wrestled with Beale. Cunningham had followed Greene into the bedroom because he had started going through her possessions. In the dining room, a gun discharged, and a bullet struck Brown in the forehead. Moriarty testified that it was the defendant’s gun that went off and that when he looked over, the defendant was about one and one-half feet away from Brown. Brown moved backward, and the defendant, who had a gun in his hand, jumped away from him. Moriarty decided to " play dead," and he " hit the deck." Cunningham, who had returned from the bedroom before the gun discharged, had not seen the defendant with a gun but testified that at the time the gun went off, the defendant was the person closest to Brown and that they were " [r]ight in front of each other." Brown died approximately five months later of medical complications associated with the gunshot wound to his head," State v. Haywood, supra, 462-64.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992). The Strickland criteria requires that the petitioner demonstrate by a preponderance of the evidence, that his attorney’s performance was substandard and that there exists a reasonable likelihood that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that habeas counsel’s representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra.
This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel’s conduct from that attorney’s perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel’s competence. Pelletier v. Warden, 32 Conn.App. 38, 46 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640 (1985). Reasonable probability means a probability sufficient to undermine confidence in the outcome. Daeira v. Commissioner, 107 Conn.App. 539, 542-43 (2008), cert. denied, 289 Conn. 911 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id. Thus, the failure of the petitioner to establish by a preponderance of the evidence, either the allegations against appellate counsel or habeas counsel or the requisite prejudice as to both the first habeas case and the criminal appeal will defeat a claim for habeas corpus relief in the present action.
Also, in Lozada v. Warden, 223 Conn. 834 (1992), our Supreme Court recognized a purely statutory right to raise, in a second habeas action, a claim of ineffective assistance on the part of the part of previous habeas counsel in presenting claims of ineffective assistance of trial counsel. Id., 835. However, the petitioner’s burden becomes a two-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged. Id., 842. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his appellate counsel was ineffective. Id. Also, the petitioner must prove that, but for the derelictions of habeas counsel, he was prejudiced in the sense that the outcome of the first habeas case was suspect, and that burden demands proof of the existence of a reasonable likelihood that the outcome of the original, criminal appeal would have been different. Id., at 842-43. The Supreme Court described this double-layered obligation as " a herculean task." Id., 843.
Also, where a habeas petitioner contends that counsel in his direct appeal rendered inadequate legal assistance, the prejudice component need only focus on the outcome of that appeal in order to afford relief in the form of a new appeal, Small v. Commissioner, 286 Conn. 707, 723-24 (2008).
To particularize these burdens, the petitioner must prove:
1. that Attorney Falk performed deficiently in the petitioner’s direct appeal;
2. that, but for those deficiencies, there exists a reasonable probability that the outcome of the direct appeal would have been more favorable;
3. that Attorney Diamond performed deficiently in attempting to demonstrate the existence of the two previous circumstances; and
4. that, but for Attorney Diamond’s deficiencies, there exists a reasonable probability that the petitioner would have prevailed in his earlier habeas action.
As to Attorney Diamond’s purported deficiencies, the petitioner specifically alleges in his amended petition that Attorney Diamond ineffectively attempted to plead and/or prove that Attorney Falk should have filed a reply brief; that Attorney Falk should have moved for reconsideration by the Appellate Court; that Attorney Falk should have raised a claim regarding the validity of the Appellate Court’s modification of the judgment of conviction; that Attorney Falk failed to argue a claim of structural error; that Attorney Falk ought to have argued that the Appellate Court’s utilization of both robbery first degree and attempt to commit robbery first degree as alternative, predicate crimes for felony murder violated his right against double jeopardy; that Attorney Falk failed to argue " cumulative prejudice" ; and that Attorney Falk failed to argue that the absence of a jury instruction on attempt to commit robbery first degree precluded a conviction on that lesser, included offense.
The petitioner presented the expert testimony of Attorney Jeffrey Kestenband, who opined that, if Attorney Falk had raised the structural error claim, the double jeopardy claim, and a State v. LaFleur claim, a reasonable likelihood exists that the outcome of the direct appeal, a motion for reconsideration, and/or a petition for certification would have been successful. The court disagrees and finds, to the contrary, that the petitioner has failed to meet his burden of proving the prejudice prongs of the Strickland-Small standard and the Lozada standard.
All of the petitioner’s allegations against Attorney Diamond are, under Lozada, derivative of his claims against Attorney Falk in the sense that, if his assertions of ineffectiveness by Attorney Falk fall short, then the petitioner cannot prevail in his claims against previous habeas counsel. At their core, the deficiencies pertaining to Attorney Falk all involve the supposed invalidity of the Appellate Court’s modification order converting the robbery first degree conviction to one for attempt to commit that crime. The court rejects this supposition and discerns no error in the Appellate Court’s action on any basis.
It is beyond the pale to assert a claim denying that an attempt to commit a specific intent crime is always a lesser, included offense of the completed crime, State v. Carlos P., 171 Conn.App. 530, 539 (2017); cert. denied, 325 Conn. 92 (2017). In particular, attempted robbery first degree is a lesser, included offense of robbery first degree, State v. John, 210 Conn. 652, 689-90 (1989); State v. Jones, 193 Conn. 70, 76-77 (1984).
" A unanimous verdict of guilty of robbery necessarily encompasses a unanimous finding that the defendants had at least attempted to commit robbery," State v. John, supra, (emphasis added); State v. Jones, supra . The holdings of these cases have never been overturned nor limited by our Supreme Court.
The petitioner argues that the cases of State v. Sanseverino, 291 Conn. 578 (2009); and State v. LeFleur, 307 Conn. 115 (2012) interact to cast doubt on the Appellate Court’s authority to vacate a conviction for a completed crime, based on insufficiency of the evidence, and substitute one for attempt to commit that crime, if the evidence supports that lesser offense. This is a dubious proposition. All that can be said regarding the holdings of those cases is that sometimes such modification may be unwarranted. Neither decision expressly or impliedly overturned the power of the Appellate Court to enter such modified judgments of conviction.
Indeed, in State v. Sanseverino, supra, our Supreme Court engaged in precisely that action. " Under the unique circumstances of this case, we conclude that the state is entitled to the modification of the judgment it seeks," Id., 595, (emphasis added). The Supreme Court allowed the conviction for kidnapping to be converted to one for the lesser, included offense of unlawful restraint even though the state never requested a jury instruction for the lesser offense nor was the jury so instructed, Id.
It is true that, four years after the petitioner’s appeal was decided, in State v. LaFleur, supra, the Supreme Court declined to modify a judgment to replace an unsupported assault with a deadly instrument conviction with one for assault second degree, which is a lesser, included offense of the former crime. But in that case, the state never requested a jury charge on the lesser offense, and the Supreme Court recognized the distinct possibility that the defense approach might have been entirely different had the state made such a request, Id., 147-48. The Supreme Court observed, " Unlike Sanseverino, we have good reason to suspect that the state in the present case opted against a jury instruction on the lesser included offense ... as a strategic decision," Id.
In State v. LeFleur, supra, the prosecution had filed a Part B information premised on a conviction for the greater offense only, Id. Allowing the jury to consider a lesser, included crime would have eliminated the possibility of conviction of the defendant as a persistent, dangerous felony offender. The state made a tactical gamble to remove such consideration by the jury, Id. Modification in that circumstance " would bestow an unfair strategic advantage upon the state ..." Id.
In the petitioner’s criminal trial, none of the peculiar circumstances which prompted the Supreme Court to decline to modify in State v. LaFleur, supra, existed. In contrast, the state orally and by written request to charge asked the trial court for a jury instruction on the lesser offense of attempted robbery first degree. The list of predicate offenses for felony murder in the information expressly included attempted robbery first degree. Most significantly, as the caselaw recited above states, the only difference between a completed crime and an attempt is fulfillment of the identical intent and purpose. It can hardly be the case that the petitioner was misled into embarking on a different defense path based on such a distinction.
The petitioner appears to argue that the Appellate Court’s modification order impinged on the petitioner’s right against double jeopardy. This argument is meritless. Where an accused is convicted of one crime and acquitted of an alternative crime, no double jeopardy violation occurs, State v. Gross, 35 Conn.App. 631, 635-39 (1994); cert. denied, 231 Conn. 932 (1994).
In the petitioner’s direct appeal, the state conceded that no completed robbery transpired, so that when the Appellate Court modified the judgment of conviction, the petitioner stood convicted of attempted robbery first degree, which is always an alternative to a completed robbery first degree. Therefore, no double jeopardy existed, State v. Deleon, 54 Conn. 278, 282; State v. Gross, supra .
As for the failure of Attorney Falk to raise a " cumulative prejudice" argument, unless there is a wrong there is no prejudice to aggregate. The only error at the criminal trial level was the trial court’s submission of a completed robbery first degree count for the jury’s consideration. The Appellate Court’s decision rectified that mistake by substituting the attempt for the completed robbery. As discussed above, that action was legally proper.
The erroneous submission of a greater offense instruction when the evidence can support only a lesser one is not a structural error. Improper jury instructions are subject to harmless error analysis, State v. Abraham, 152 Conn.App. 709, 729 (2014); Small v. State, 143 Conn.App. 655, 670 fn. 3 (2013); State v. Kirk, 74 Conn.App. 376, 382-83, fn.10 (2002); aff’d, 271 Conn. 499 (2004); State v. Price, 61 Conn.App. 417, 424 (2001).
For these reasons, the amended petition for habeas corpus relief is denied.